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Professor Tessa Davis of Tulane Law School has taken the IRS and the Tax Court to task over their position on fertility treatment. For a reason which I will explain I probably will not be able to do justice to her treatment, so here is a link to Reproducing Value: How Tax Law Differentially Values Fertility, Sexuality & Marriage . I highly recommend it. Now I will endeavor to give the rest of you the gist of it. Professor Davis suggests that the IRS and the Tax Court are trying to rationalize traditional values into tax law interpretations:

Section 213 doctrine stumbles over various rationales to justify the outcome with which the IRS and Tax Court are most comfortable—that fertility treatments be readily deductible for medically-infertile, heterosexual, married couples but not for anyone else. The end result is a muddled, arbitrary, and discriminatory §213 which devalues homosexual and single parenthood. I argue that the IRS and Tax Court should replace their heteronormative, marriage-centric values with ones that validate new forms of parenthood now enabled by reproductive technologies.

The case that she gives the most attention to is that of William Magdalin. You can tell it is going to be an interesting case right off the bat:

Petitioner is a medical doctor licensed to practice medicine in Massachusetts. At all relevant times, his sperm count and motility were found to be within normal limits.

Dr. Magdalin wanted to father children using the latest in medical technology. There was his sperm which feritlized an egg from an anonymous donor. Then there is the "gestational carrier". Dr. Magdalin went through the process in 2005 and 2006. He spent over $70,000 which he wanted to deduct as a medical expense. He used as a precedent PLR 200318017.

The definition of medical care is "amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body". Not to be geeky but that "or" is important. If there is a "disease" involved all sorts of things can be deductible medical expenses. An example is special schools for people who are differently abled. On the other hand expenses that affect "any structure or function of the body" don't have to have anything to do with "disease". Things that are working really well can be altered and still count as a medical expense. Vasectomies, for example, are deductible.

Applying the definition to Dr. Magdalin's case we understand why sperm court and motility (whatever that is) were important facts. There was nothing wrong with his reproductive system - no disease. Further, nothing was done that affected the structure or function of his body. Hence no medical deduction. How did this differ from his "precedent" ? The taxpayer in PLR200318017 was a woman who could not conceive using her own eggs and the egg donor expenses were allowed. Dr. Magdalin argued that the result was unfair:

Petitioner argues that it was his civil right to reproduce, that he should have the freedom to choose the method of reproduction, and that it is sex discrimination to allow women but not men to choose how they will reproduce.

Professor Davis does not think that the IRS and the Tax Court were simply applying the statute when they denied Dr. Magdalin's deduction.

...the IRS and the Tax Court are operating with a heteronormative, marriage-centric understanding of natural or normal reproduction, what qualifies medical and who makes an appropriate parent. This set of norms drove the IRS and the Tax Court to conclude in Magdalin that a deduction was not permissible—not because of any command in the doctrine, but rather because the taxpayer in that case did not fit the IRS’s and the Tax Court’s understanding of who a proper parent is.

The argument is that if a heterosexual married couple has fertility issues, the full battery of possible options will be deductible, since anything that is done will either be in response to a problem one of them has - the disease prong - or affect the structure or function of one of their bodies. That is the "heteronormative" part. They are able to file a joint return or even if filing separately deduct medical expenses that are paid for a spouse. That is the "marriage-centric" part.

Professor Davis launches into anthropological theory to examine where the IRS and the Tax Court are coming from.

Most importantly, anthropological theory forced us to recognize that considering the deductibility of fertility treatments under §213 ultimately requires us make value judgments about whose reproduction we value and who we deem to be proper parents. By making us recognize the inevitability of engaging in such judgments, anthropological theory gives us a welcome opportunity to deliberately change those judgments, to reform a discriminatory doctrine into one which values and supports an individual’s right to make a family as he/she desires, regardless of that individual’s gender, sexuality or marital status.

I indicated above that I would not be able to give full justice to Professor Davis's theory. Here is where she loses me:

Oft-invoked in the anthropology of medicine and the body, Michél Foucault’s theories of the body, discourse, and disciplinary and legal systems are extremely influential to social theory.

I don't know what it is, but when Foucault checks in, I end up checking out. There is something about that guy that I just don't get.

Applied to our current inquiry, Foucault’s theories explain that when the medical profession, the Tax Court or the IRS classify behavior or biological processes as normal or natural, they are engaged in an exercise of power which is culturally-mediated.

What these crucial points teach us is that when the Tax Court/IRS understands a form of reproduction as natural and another simply as choice, they are engaged in a value-laden exercise, even if they are unaware of that fact. Such classifications are mechanisms of power which perpetuate inequalities grounded in cultural-conceptions of a person or behavior, rather than which are intrinsic to the subjects of such labels.

There is a lot more to the argument. Personally I suspect that it is not so much the IRS and the Tax Court that are choosing to be heteronormative and marriage-centric as it is the Code. The basic language in Section 213 dates to at least the fifties, if not earlier. States are all over the place on the legality and enforceability of surrogacy contracts, so it is not surprising that the tax law is resisting being dragged into the brave new world of reproductive outsourcing.